A party’s
failure to provide an adequate privilege log in response to a trial court order
was not a waiver of the attorney-client privilege or the right to protect
attorney work product, the Fourth District Court of Appeal has ruled.

Div. Three ruled
Friday that Orange Superior Court Judge Kirk Nakamura was in error when he
ruled that the Catalina Island Yacht Club and its directors had waived their
claims of privilege by providing inadequate support for the claims, in a
dispute with a former director.

“When confronted
with a deficient privilege log that fails to provide the necessary information
to rule on attorney-client and work product objections, a trial court may order
the responding party to provide a further privilege log that includes the
necessary information to rule on those objections, but may not order the
privileges waived based on deficiencies in the privilege log because serving a
deficient privilege log, or even failing to serve a privilege log, is not one
of the three statutorily-authorized methods for waiving the attorney-client
privilege,” Justice Richard Aronson explained.

Possible
Sanctions

The court may
impose monetary sanctions, or issues, evidentiary, or even terminating
sanctions, Aronson added. But Nakamura exceeded the court’s jurisdiction when
he ruled that the defendants had waived their protections and had to disclose
the 167 emails identified in the log to attorneys for the plaintiff, Timothy
Beatty.

Beatty’s
complaint alleges that the defendants conspired to remove him from the board
and oust him from the club because he exposed improper sewage dumping,
questionable accounting, and suspicious weapons possession. He pled claims for
libel, slander, invasion of privacy, and intentional infliction of emotional
distress.

“The individual
board members…plaintiff is informed and believes, decided to oust Beatty from
the club because of his position that the club should be transparent with
regard to the issues relating to the sewer discharge, should be forthcoming
about problems with the point of sale system and the club’s accounting, and
should comply with applicable law regarding [employees’] possession of
weapons,” Beatty——owner of Beatty & Company Computing, Inc.—said in his
complaint.

Privilege
Arguments

In response to a
request for production, the defense identified 17 “communications” it said it
would not produce because they were privileged, identifying the date of each
and explaining that it was between “counsel for Defendants and Defendants.”

Beatty’s counsel
moved to compel production, based on the inadequacy of the response. The
parties eventually agreed that the defendants would present a supplemental
privilege log identifying the sender and recipients of each communication.

In September of
last year, the defendants served the supplemental log, increasing the number of
identified documents to 36 and explicitly stating for the first time that all
of the communications were emails. The plaintiff accused the defendants of
withholding documents and moved for sanctions, after which the defendants
produced another supplemental log increasing the number of withheld emails to
167, which Beatty moved to compel the production of.

In May of this
year, Nakamura ordered that all of the emails be produced within 10 days, and
imposed $1,140 in monetary sanctions. He said the most recent log failed to
contain “[e]ven a minimal statement…as to why the subject emails may be
protection from disclosure.”

The plaintiffs
challenged the order in a writ petition, and the Court of Appeal granted a stay
and order to show cause.

Abuse of
Discretion

Aronson, in his
opinion Friday, said the trial judge’s order was an abuse of discretion.

Under the
Evidence Code and the Civil Discovery Act, the justice explained, the
attorney-client privilege can only be waived by disclosure “in a nonconfidential
context,” by “failing to claim the privilege in a proceeding in which the
holder has the legal standing and opportunity to do so,” or by failure to
assert it in a timely response to an inspection demand.

“Failing to
serve a privilege log or serving an inadequate privilege log does not fall into
any of these three methods,” he said.

The proper
response when a privilege log is not served, or when an inadequate log is
served, is for the court to order the service of a log or supplemental log, which
may be accompanied by monetary sanctions, the justice explained. If the party
then provides an inadequate log, the court may, upon further motion, impose
evidentiary, issue, or “even terminating” sanctions, as well as further
monetary sanctions, he added.

Nakamura’s
order, the justice wrote, was a “forced waiver” of privilege and beyond his
authority, also Aronson agreed with the trial judge that the supplemental log
was inadequate.

The panel
directed the trial court to grant the plaintiff’s motion to compel a
supplemental privilege log, and to impose additional monetary sanctions on the
defendants in an appropriate amount.